NEWS

On October 17, 2018, the Cannabis Act and a number of supporting regulations and ministerial orders came into force, legalizing use of cannabis for recreational use. However, the Cannabis Act still strictly regulates the sale, possession and production of cannabis in Canada. It has also led to some interesting questions for users of legal cannabis: what impact will their use of cannabis have on their ability to travel to other countries.While Canada has legalized cannabis this is not the case for our neighbour, the United States. Crossing the Canadian border with cannabis, either entering or leaving, is still illegal. Travelers crossing the border to the US have faced increasing levels of scruitiny in recent years and the legalization of cannabis in Canada will be adding a level of additional complexity for users of cannabis and anyone who works in the cannabis industry.

Below are some important points you should know if you plan to travel to the U.S. and use cannabis or work in the cannabis industry.

You may face a life time banAlthough the possession of cannabis is legal in some U.S. states, it remains illegal under U.S. federal laws in any form and quantity. According to the US Customs and Border Protection statement issued with regards to the legalization in cannabis in Canada: “any arriving alien (non-U.S. Citizen) who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible to the U.S.If a Border officer determines that you are inadmissible you may be prevented from entering the U.S. and in some cases you may face a ban on being able to enter in the future.

You should not attempt to cross the Canada-U.S. border with any amount of cannabis in any form, even if you are travelling to a U.S. state that has legalized possession of cannabis. If you do so you can expect legal prosecution and fines, and possibly jail time.

Reciprocal Access to US and Canadian Criminal RecordsUS Border Officers have access to US and Canadian criminal records. If a Border Officer finds prior charges for cannabis or other drug or alcohol violations, this may make you inadmissible to the U.S., even if the charges did not result in a conviction. It is not possible to prevent the US Border officer from finding you inadmissible for a prior charge or conviction. However by answering all questions truthfully you can prevent the Officer from finding you permanently inadmissible for committing fraud and misrepresentation by denying that you have a prior charges.

Your Mobile Devices and Personal Belongings May Be SearchedYou should be aware that Border Officers have the authority to search your personal belongings, including all mobile devices – they can even request your cellphone and laptop passwords to fully access the content of your mobile devices. Therefore any content such as photos, text messages or even emails may be interpreted by the Border Officer as evidence that you may have or intend to commit a criminal act, including cannabis use and therefore lead to finding you inadmissible to enter the U.S.Your Online Data May Put You at RiskSo far, the purchase of cannabis in many provinces is only available and online and requires that you provide a great deal of personal information as part of the purchase transaction. Given the number of data breaches that companies and governments have faced in the past, there is a real risk that if you purchase cannabis legally your private information may later be accessed by unauthorized parties. Further, if your electronic information is stored in servers in the U.S. it is not covered by the protections of Canada's Privacy Policy and can be accessed by US authorities since the information belongs to a non-American individual.Please note that these points are intended for general purposes and if you intend to travel to the U.S. you should obtain qualified legal advice to understand all the risks based on your individual circumstances. The consequences of breaching U.S. laws are grave and as explained above can lead to a permanent ban from entering the U.S. in the future.

Last week I wrote about who may be criminally inadmissible to Canada. But are there any ways in which you may be able to overcome criminal inadmissibility? The good news is that the answer may be yes.

Depending on the crime, how long ago it was committed and how you have behaved since, you may still be allowed to come to Canada, if you:1. convince an immigration officer that you meet the legal terms to be deemed rehabilitated,2. apply for rehabilitation and are approved,3. are granted a record suspension or pardon, or​4. apply for and obtain a Temporary Resident Permit.Rehabilitation means that you are not likely to commit new crimes. Deemed rehabilitation means that enough time has passed since you were convicted such that your crime may no longer bar you from entering Canada. You may be deemed to be rehabilitated if your offence was a summary offence and at least 5 years has passed since the sentence was served, or it was an indictable offence punishable by a maximum imprisonment of less than 10 years, and at least 10 years has passed since you completed the sentence.

In other situations it may be more appropriate to submit a rehabilitation application to be allowed to enter Canada. In addition to meeting the eligibility criteria, you will have to show that you have rehabilitated, you are highly unlikely to take part in further crimes and at least 5 years has passed since the end of your criminal sentence and the day you committed the act that made you inadmissible.

The next option is to apply for a discharge or pardon. If your offence occurred in Canada and your charges have been withdrawn, dismissed, discharged (absolute or conditional), or pardoned under the Criminal Records Act, you are not considered criminally inadmissible. If you are able to obtain a pardon, it will permanently erase your Canadian criminal record, “and any consequences of inadmissibility resulting from it” within Canada. However, if your offence occurred outside of Canada, we will have to check to determine what impact the foreign record suspension or pardon will have on your admissibility.

Finally, you may be able to apply for a Temporary Resident Permit (“TRP”) that will allow you to enter or stay in Canada if it has been less than 5 years since the end of your sentence or you have valid reasons to be in Canada. In order to apply for a TRP, the need for you to enter or stay in Canada must outweigh any safety risks to Canadian society. You must be able to convince the immigration or border officer that your visit to Canada is justified. In assessing your application, the officer will look at various risk factors such as the seriousness of the offence, how much time has passed since the offence was committed, the chances of you committing further offences, evidence of rehabilitation, whether there are any outstanding charges and whether any controversy or risk is caused by allowing you into Canada.

Unfortunately there is no guarantee that a TRP will be issued and generally a permit is issued for a limited period of time for you to visit Canada for a specific purpose. In some cases it is possible for us to apply for authorization to leave and re-enter with a TRP, for example in the case of a frequent business traveller convicted of a minor offence.

Whether you are criminally inadmissible or have concerns that you may face a risk of criminal inadmissibility, you should consult an immigration lawyer to understand your options and make a plan to deal with the issue proactively. A lawyer can assist you in assessing your situation and preparing necessary applications for rehabilitation or TRP. And make sure to plan ahead – these types of applications can take over a year to process and you want to be sure ensure that you have the necessary permission to enter Canada before embarking on your travels.

Why does Canada deem that certain individuals are “inadmissible” to enter the country? Canada's immigration laws and regulations must balance the nation's interest in permitting immigration to maximize social, cultural and economic benefits for Canada as a whole while at the same time protecting the health and safety of Canadian and ensuring the security of Canadian society. Last week I wrote about medical inadmissibility and individuals who may be prevented from entering Canada because they may endanger the health of other Canadians. In this article, I will outline who may be deemed criminally inadmissible: the group of people who may not be allowed to enter Canada because they have committed a crime or been convicted of a crime inside or outside of Canada.

Canada's immigration laws and regulations make it clear that a foreign national or permanent resident who is convicted of an offence under any act of Canada's parliament is deemed criminally inadmissible. The most common offences are found under the Criminal Code of Canada and the Controlled Drugs and Substances Act and include manslaughter, assault, theft, dangerous driving and driving under the influence of drugs or alcohol, and possession of or trafficking in drugs or controlled substances. However, it is possible that someone may be convicted of an offence under the Immigration and Refugee Protection Act (“IRPA”) of an offence such as possessing false documents in order to contravene IRPA or direct or indirect misrepresentation.

Compared to medical inadmissibility, it is important to note that criminal inadmissibility can apply to those who are already permanent residents of Canada. In some cases, IRPA authorizes the removal from Canada of permanent residents (as well as foreign nationals) that are deemed to be criminally inadmissible.

Who is criminally inadmissible?In order to determine if you are criminally admissible we need to know what offence you were convicted of and where the conviction occurred. Except in cases of crimes against humanity, the activity you are convicted of must be a crime in both the place it was committed and in Canada. Interestingly, for offences outside of Canada a conviction is not necessary but for an offence in Canada you must have an actual conviction to be considered criminally inadmissible.

The seriousness of the crime that was committed and the consequences that follow your conviction determine if the crime you committed makes you inadmissible. In Canada the terms used to describe difference in severity of an offence are “Indictable” (more serious) and “Summary” (less serious) offences. Some offences are “Hybrid” offences where you may be prosecuted by indictment or summary conviction. A person is generally inadmissible if convicted of an offence in Canada, or elsewhere in the world, that would be at least a hybrid offence in Canada.

Immigration officers are charged with determining the equivalency of foreign conviction compared to Canadian laws, such as the Criminal Code. Based on this, the immigration officer will determine if the criminal conviction will render the applicant inadmissible. In many cases this determination is very difficult because the criminal laws of each country are different in terms of how they define the elements of the crime and the consequences of a conviction. In cases where the crime is more serious, such as murder, armed robbery or burglary, the decision to grant admission to Canada cannot be made by the immigration officer but must be referred to a Manager or Supervisor for determination.

Is there any way to overcome criminal inadmissibility?In some cases, there may be a compelling reason for you to enter Canada for either employment or family issues despite having a criminal record. In some cases you may be able to overcome your criminal convictions and enter Canada, and in the case of permanent residents who are convicted of a crime, it may still be possible to overcome the criminal record and apply for citizenship. Next week I will write about rehabilitation and temporary resident permits that may allow a person with prior convictions to enter Canada.

Note: This information is not intended as legal advice or opinion. You should always seek specialized legal advice with regards to your situation as the facts of each case are unique and the application of law varies in every case.